Boynton v. Virginia Brief for Petitioner

    I n the

(Eourt nf tl|p luttTfc S ta irs
October T erm, 1960 

No. 7

Bruce Boynton,
Petitioner,

—v.—

Commonwealth op Virginia,
Respondent.

ON WRIT OP CERTIORARI TO THE SUPREME COURT OP APPEALS
OP VIRGINIA

BRIEF FOR PETITIONER

Martin A. Martin
118 East Leigh Street 
Richmond 19, Virginia

Clarence W. Newsome 
118 East Leigh Street 
Richmond 19, Virginia

T hurgood Marshall
J ack Greenberg

10 Columbus Circle 
New York 19, New York

Attorneys for Petitioner
Louis H. P ollak 
Constance B aker Motley 

Of Counsel



TABLE OF CONTENTS
PAGE

Opinions Below ......-..................................................  1

Jurisdiction ............................................................... - 1

Questions Presented ......... ........................................  2

Constitutional and Statutory Provisions Involved .... 2

Statement ...................................................... —..........  3

Summary of Argument........ ...................................... 5

Argument   ................................................— ........ 6
Introductory ............................................. -......... 6

The statute involved .................................- ....  6
Issues presented by the statute as applied .... 8

I. The decisions below conflict with principles estab­
lished by decisions of this Court by denying peti­
tioner, a Negro, a meal in the course of a regu­
larly scheduled stop at the restaurant terminal 
of an interstate motor carrier and by convicting 
him of trespass for seeking nonsegregated dining 
facilities within the terminal .................... .... .....  14

II. Petitioner’s criminal conviction which served 
only to enforce the racial regulation of the bus 
terminal restaurant conflicts with principles 
established by decisions of this Court, and there­
by violates the Fourteenth Amendment ............  22

Conclusion ............................................ -.................. - 26



ii

T able oe Cases
page

Barrows v. Jackson, 346 U.S. 249 ..............................  11
Bibb v. Navajo Freight Lines, 359 U.S. 520 .... ......... 15
Bob~Lo Excursion Co. v. Michigan, 333 U.S. 28 ......  21
Bolling v. Sharpe, 347 U.S. 497 ................................ 21
Boman v. Birmingham Transit Co., No. 18187, July

12, 1960, Fifth Circuit ......................................... 12,18, 24
Boykin v. State, 40 Fla. 484, 24 So. 141 (1898) ..........  8
Breard v. Alexandria, 341 U.S. 622 ..........................  10, 25

Chance v. Lambeth, 186 F.2d 879 (4th Cir. 1951),
cert, den., 341 U.S. 941 ....... ............... ................ . 12,17

Commonwealth v. Israel, 31 Va. (4 Leigh) 675 (Va.
Gen. Ct., 1833) ...... ...................................................  7

Commonwealth v. Richardson, 313 Mass. 632, 48 N.E.
2d 678 (1943) ...........................................................  8

Re Debs, 158 U.S. 564 ................................................  16
Dye v. Commonwealth, 48 Va. (7 Grat.) 662 (Va.

Gen. Ct., 1851) .......................................................... 7

Falkingham v. Fregon, 25 V.L.R. 211, 21 A.L.T. 123
(1899) ......     9

Freeman v. Retail Clerks Union, Washington Su­
perior Court, 45 Lab. Rel. Ref. Man. 2334 (1959) .... 12

Greenaway v. Hunt and Weggery [1922] N.Z.L.R.
53 [1921], G.L.R. 673 ..............................................  9

Gripps v. Gripps, 20 Tas. L.R. 47 (1924) .................. . 9

Hall v. Commonwealth, 188 Va. 72, 49 S.E.2d 369
(1948), app. dism. 335 U.S. 875 ............................  6

Hall v. DeCuir, 95 U.S. 485 ......................................... 16
Henderson v. Commonwealth, 49 Va. (8 Grat.) 708

(Va. Gen. Ct., 1852) ................................................  7



Ill
PAGE

Henderson v. United States, 339 U.S. 816 - ............15,19, 20

James v. Butler, 25 N.Z.L.R.C.A. 653 (1906) ..........  9
Jones v. United States,-----U.S.------  (1960) ..........  13

Keys v. Carolina Coacli Co., 64 M.C.C. 769 (1955) .... 20
Kirsehenbaum v. Walling, 316 U.S. 517.....................  16

Marsh v. Alabama, 326 U.S. 501............................10,12, 24
Martin v. Struthers, 319 U.S. 141..............................  10
Maryland v. Williams, 44 Lab. Eel. Kef. Man. 2357

(1959) .............. .......-..................-......-...... ....-......... 11
Miller v. Harless, 153 Va. 228, 149 S.E. 619 (1929) .... 7
Mitchell v. United States, 313 U.S. 8 0 ..............    19
Morgan v. Virginia, 328 U.S. 373 ............... 14,15,19, 20, 21
Murphey v. State, 115 Ga. 201, 41 S.E. 685 (1902) .... 8
Myers v. State, 190 Ind. 269, 130 N.E. 116 (1921) ..... 8, 9

N.L.R.B. v. American Pearl Button Co., 149 F.2d
258 (8th Cir. 1945) ....... .................... -....................  H

N.L.R.B. v. Fansteel Metal Corp., 306 U.S. 240 (1948) 12, 25 
N.Y. N.H. & H. R. Co. v. Nothnagle, 346 U.S. 128......  16

People v. Barisi, 193 Mise. 934, 86 N.Y.S.2d 277
(1948) .........................-...........  • ...............-..........  12

People v. Miller, 344 111. App. 574, 101 N.E.2d 874
(1951) ...... ............. .............. .......... -........................ 9

People v. Stevens, 109 N.Y. 159, 16 N.E. 53 (1888) .... 8

R. v. Blake, et al., 3 Burr. 1731, 47 E.R. 1070 (1765) 9
R. v. Phiri (4) S.A. 708 (T) (1954) ........................... 9
R. v. Storr, 3 Burr. 1698, 97 E.R. 1053 (1765) .......... 7, 9
R. v. Wilson, 8 Term Rep. 357, 101 E.R. 1432 (King­

ston Assizes, 1799) .................................................. 9
Republic Aviation, Inc. v. N.L.R.B., 324 U.S. 793 ..... 11, 25



IV
PAGE

Rex v. Storr, 3 Burr. R. 1698 .....................................  7
Rice v. Santa Fe Elevator Corp., 331 TJ.S. 218 ......  16
Ryan v. Stanford, 15 N.Z.L.R.C.A. 390 (1897) ........  9

Secretary of Agriculture v. Central Roig Refining
Co., 338 U.S. 604 .....................................................  21

Shelley v. Kraemer, 334 U.S. 1 .................................. 11, 22
Southern Pacific Co. v. Arizona, 325 U.S. 761..........  14,19
Sprout v. South Bend, 277 U.S. 163............................  16
Stafford v. Wallace, 258 U.S. 495 ..............................  15
State v. Clyburn, 247 N.C. 455, 101 S.E.2d 295 (1958) 9
State v. Cockfield, 15 Rich. (49 S.C.L.) 53 (1867) ..... 9
State v. Larason, 72 Ohio L. Abs. 211, 143 N.E.2d 502 

(1956) ...................................................................... 9

United States v. Yellow Cab Co., 332 U.S. 218, 228 16
United Steelworkers v. N.L.R.B., 243 F.2d 593 (D.C.

Cir. 1956) (reversed on other grounds) 357 U.S.
357 ...........................................................................  11,25

Whiteside v. Southern Bus Lines, 177 F.2d 949 (6th
Cir. 1949) ................................................................  12,17

Wiggins v. State, 119 Ga. 216, 46 S.E. 86 (1903) ......  8
Williams v. Howard Johnson Restaurant, 268 F.2d

845 (4th Cir., 1959) ............................................  23
Wise v. Commonwealth, 98 Va. 837, 36 S.E. 479 

(1900) ...................................................................... 7

United States Statutes and Constitutional P kovisions

United States Constitution, Article I, Sec. 8, cl. 3 ..... 2, 8,
12,13

United States Constitution, Fourteenth Amendment 2
28 U.S.C. Sec. 1257(3) ................................................  2



V
PAGE

49 U.S.C. See. 3(1) ...................................................... 19
49 U.S.C. See. 303(19) ................................................  20
49 U.S.C. Sec. 316(d) ......... ......................................  5,19

State Statutes

Alabama Code 1940, Title 14, See. 426 ..................... 9
Alaska Laws Annot., 1958, Sec. 65-5-112...................  9
Arkansas Rev. Stats., 1959, Secs. 71-1801, 1802, 1803 9
California, West’s Code Annot., 1958, Tit. 14, Sec. 602 8
Connecticut, Gen. Stats. Rev., 1958, Sec. 53-103 ........  9
Delaware Code Annot., 1953, Tit. 11, Sec. 871..........  9
District of Columbia Code Annot., 1956, Sec. 22-3102 9
Florida, West’s Stats. Annot., 1948, Tit. 44, See.

821.01 .......................... ....................................'......... 8
Georgia Annot. Code, 1959, Sec. 26-3002 ...................  8
Hawaii Rev. Laws, 1955, Sec. 312-1................   9
Illinois Rev. Stats., 1959, Tit. 38, Sec. 565 .................  8
Indiana, Burns Stats. Annot., 1956, Tit. 10, Sec. 4506 8
Kentucky Rev. Stats., 1959, Sec. 433-380 .................  8
Maine Rev. Stats., 1959, c. 131, Sec. 39....................... 8
Maryland Annot. Code, 1957, Art. 27, Sec. 577 ..........  8
Massachusetts, Michie’s Annot. Laws, C. 266, Sec. 120 8
Michigan Stats. Annot., 1954, Sec. 28-820(1) ..........  9
Minnesota Stats. Annot., 1947, Sec. 621.57 ...............  9
Mississippi Annot. Code, 1942, Tit. 11, Sec. 2411......  8



VI
PAGE

Nebraska Rev. Stats., 1957, Tit. 28, Sec. 589 .............. 8
Nevada Rev. Stats., 1957, Sec. 207.200 ......................  9
New Hampshire Rev. Stats. Annot., 1955, Sec. 572:50 9
New Jersey Annot. Stats., 1957, Tit. 2A, Sec. 170-31 8
New York, McKinney Laws, Art. 182, Sec. 2036 ....... 8
North Carolina Gen. Stats., Tit. 14, Sec. 134.............. 9
Ohio, Page’s Rev. Code Annot., Sec. 2902.21 ..............  8
Oklahoma, West’s Stats. Annot., 1958, Tit. 21, Sec.

1353 .................... .....................................................  8
Oregon Rev. Stats., Sec. 164.460 ................................ 9
South Carolina Code of Laws, 1959, See. 16-386 ......  9
Virginia Code Sec. 18-225 ............................. ..... ......1, 2,4, 8
Washington Rev. Code, 1957, Sec. 8.83.060 ...............  9
West Virginia Code, 1955, Sec. 5974 ..........................  8
Wyoming, Michie’s Stats. Annot,, 1957, Sec. 6-226 .... 9

Statutes oe Commonwealth Countries

Natives (Urban Areas) Consolidation Act of 1945,
Sec. 9, para. 9, as provided by Sec. 29, para, e of 
Native Laws Amendment Act No. 36 of 1957 
(South Africa) ........................................................ 9

New Zealand, Police Offences Amendment Act (No.
2) No. 43 of 1952, Sec. 3 ........................................... 9

Prevention of Illegal Squatting Act, No. 52 of 1951,
Sec. 1 (South Africa) ............................................ 9

72 South Af. L.J. 125 (1955).......................................  9



V ll

PAGE

Tasmania, Trespass to Lands Act, 1862 — ...............  9
Victoria, Australia, Police Offences Act, No. 6337 of 

1958, Sec. 20 ......................    9

Otheb A uthorities

63 C.J.S. 1075 ............................................................  7
72 South Af. L.J. 125 (1955) ...................................  9
H.B. 1112, Act No. 497, 1960 General Assembly of 

Georgia ....................................................................  8
Hitchcock’s Mass Transportation Directory (1959-60 

ed.) 205, 242 ............................................................. 22
Op. Atty. Gen. of Florida 649, 1953-54 ..................... 8



I n the

Cfkmrt nt tip IniPit States
October T erm, 1960 

No. 7

Bruce B oynton,
Petitioner,

—y.—

Commonwealth of Virginia,
Respondent.

on writ of certiorari to the supreme court of appeals

OF VIRGINIA

BRIEF FOR PETITIONER

Opinions Below

No opinion was rendered in this case by the Supreme 
Court of Appeals of Virginia when it denied the petitioner 
a writ of error to the judgment of the Hustings Court of the 
City of Richmond on the 19th day of June, 1959. No opinion 
was rendered by the Hustings Court of the City of Rich­
mond on the 20th day of February, 1959, when it found 
petitioner guilty of a violation of §18-225 of the Code of 
Virginia, 1950, as amended.

Jurisdiction

The judgment of the Supreme Court of Appeals of 
Virginia was rendered on the 19th day of June, 1959 and



2

stay of execution and enforcement of the judgment of said 
Court was granted on the 24th day of July, 1959 staying 
the execution and enforcement of same until the 17th day of 
September, 1959, unless the case would before that time be 
docketed in this Court in which event enforcement of said 
judgment should be stayed until the final determination of 
this case by this Court. On February 23, 1960, this Court 
granted a petition for writ of certiorari from the Supreme 
Court of Appeals of the Commonwealth of Virginia. The 
jurisdiction of this Court rests on 28 U.S.C. §1257(3).

Questions Presented

1.

Whether the criminal conviction of plaintiff, an inter­
state traveler, for refusing to leave an interstate bus ter­
minal restaurant where he sought refreshment at a regu­
larly scheduled stop in the course of his interstate journey 
and was barred solely because of his race, is invalid as a 
burden on interestate commerce in violation of Article I, 
§8, Clause 3 of the United States Constitution.

2 .
Whether said conviction violates the due process and 

equal protection clauses of the 14th Amendment to the Con­
stitution of the United States.

Constitutional and Statutory Provisions Involved

This case involves:

Article I, §8, and the due process and equal protection 
clauses of the XIV Amendment of the Constitution of the 
United States.

§18-225 of the Code of Virginia of 1950. This statutory 
provision is set forth in the Statement, infra, p. 4.



3

Statement

At 10:40 P. M. on December 20th, 1958, Bruce Boynton, 
petitioner, stepped off a Trailways bus from Washington, 
D. C., at the Trailways Bus Terminal in Richmond, Va., for 
a forty minute layover. Petitioner, a Negro student at the 
Howard University School of Law in Washington, was hun­
gry and anxious to get something to eat before reboarding 
the bus to continue on to his home in Selma, Alabama, by 
way of Montgomery (R. 27-28).

He first looked into a small restaurant and noticed that 
it was crowded with colored patrons. Since his time was 
limited, he went on to another restaurant within the ter­
minal, which was practically empty, adjacent to the 'wait­
ing room (R. 28). He entered and sat on a vacant stool 
at the counter. A white waitress immediately approached 
and informed him that she had orders not to serve people of 
his race. She advised him to use the colored facilities. 
Petitioner explained that he would like to be served before 
his bus, which was scheduled to leave shortly, departed. To 
insure quick service he ordered a prepared sandwich and a 
cup of tea. But the waitress disregarded his order, de­
parted for a while and returned to repeat that it was cus­
tomary not to serve Negroes in that particular restaurant 
(R. 29).

Petitioner asked to speak to someone who could wait on 
him, pointing out that he was an interstate passenger with 
a cross-country ticket purchased in Washington, D. C. (R. 
29). At this point the assistant manager intervened “to 
explain to him the situation” (R. 21) and to demand that 
petitioner leave. Petitioner refused to move. The assistant 
manager’s response was to have petitioner arrested (R. 21, 
29). Petitioner’s baggage was removed from the bus on 
which he had expected to continue his journey, and peti-



4

tioner himself was taken away in a patrol wagon, charged 
with a violation of §18-225 of the Code of Virginia of 1950 
as amended, which provides:

“If any person shall without authority of law go 
upon or remain upon the lands or premises of another 
after having been forbidden to do so by the owners, 
lessee, custodian or other person lawfully in charge 
of such land, or after having been forbidden to do so 
by sign, or signs posted on the premises at a place 
or places where they may be reasonably seen, he shall 
be deemed guilty of a misdemeanor, and upon convic­
tion thereof shall be punished by a fine of not more 
than $100.00 or by confinement in jail not exceeding 
thirty days, or by both such fine and imprisonment.”

The bus terminal was owned and operated by Trailways 
Bus Terminal, Inc. (R. 9-17). The restaurants therein were 
built into the terminal upon its construction and leased 
by Trailways to Bus Terminal Restaurant of Richmond, 
Inc. (R. 9-17). The lease gave exclusive authority to the 
lessee to operate restaurants in the terminal, required that 
they be conducted in a sanitary manner, that sufficient food 
and personnel be provided to take care of the patrons, that 
prices be just and reasonable, that equipment be installed 
and maintained to meet the approval of Trailways, that 
lessee’s employees be neat and clean and furnish service 
in keeping with service furnished in an up-to-date, modern 
bus terminal; prohibited the sale of alcoholic beverages on 
the premises; and permitted cancellation of the lease upon 
the violation of any of its conditions (R. 9-17).

Petitioner was convicted in the Police Court of the City 
of Richmond and fined $10.00, which conviction was ap­
pealed to the Hustings Court of the City of Richmond



5

which affirmed (E. 31).1 Petition for writ of error to the 
Supreme Court of Appeals was rejected, the effect of which 
was to affirm the judgment of the Hustings Court (E. 32). 
The affirmance by the Supreme Court of Appeals of Vir­
ginia, appears in the Eecord at p. 32. In the Elustings Court 
of the City of Eichmond petitioner objected to the criminal 
prosecution on the grounds that it contravened his rights 
under the Commerce Clause of the United States Constitu­
tion (Article 1, Section 8) and the Interstate Commerce Act 
(Title 49 U.S.C., Section 316(d)) and that he was thereby 
denied due process and equal protection of the laws secured 
by the Fourteenth Amendment to the United States Con­
stitution (E. 6-7). Said objections were renewed by notice of 
appeal and assignment of error to the Supreme Court of 
Appeals of Virginia (E. 5). These defenses, however, as 
aforesaid, were rejected at all stages of the litigation with­
out opinion. On February 23, 1960 this Court granted 
petitioner’s petition for writ of certiorari to the Supreme 
Court of Appeals of Virginia.

Summary of Argument

The arrest and conviction of petitioner burdened inter­
state commerce. That the terminal in question is stationary 
does not exempt the burden there effected from the gen­
eral rule. Even if petitioner’s arrest and conviction for 
insisting upon nonsegregated dining service might some­
how be viewed as “private action,” the Commerce Clause 
also forbids privately imposed burdens on interstate com-

1 Petitioner, at the time of arrest, was a law student at Howard Uni­
versity. Since then he has been graduated, and on February 16, 1960, took 
the Alabama bar examination. While others wdio took the examination with 
him already have been admitted to the bar, petitioner’s status has not yet 
been declared. He is under an investigation, he has been informed, which 
concerns this conviction.



6

merce. But the arrest and conviction here supply requisite 
state action should that be required. Congress has ex­
pressed no specific intent concerning an arrest and con­
viction like petitioner’s, but should congressional intent 
be found in the Motor Carriers Act, that Act, read in a 
context of relevant constitutional law, indicates intent that 
this burden not be permitted.

Judicial enforcement of private racial discrimination 
violates the 14th Amendment. This has been made clear, 
among other places, in cases of arrest for exercise of con­
stitutional rights in public places although possessory in­
terest to these places actually may lie with private indi­
viduals, or corporations. Petitioner’s conviction is not a 
reasonable exercise of police power necessary to maintain 
law and order. In fact, petitioner’s act would not have been 
criminal at common law, in almost all of the other states of 
the Union, in England, or in the Commonwealth countries, 
except South Africa where similar law is directed solely at 
Natives.

Argument

Introductory

The statute involved

Virginia’s police, in the circumstances related above, by 
application of a trespass statute, have halted petitioner’s 
interstate journey, forced him to disembark and remove his 
baggage from the interstate bus which carried him from 
Washington, D. C. en route to his home in Alabama, and 
have brought him before the Virginia courts which have 
adjudged him guilty of crime. The statute is set forth 
supra, p. 4.

This statute apparently has been interpreted by the 
Virginia courts but once. Hall v. Commonwealth, 188 Va.



7

72, 49 S.E. 2d 369 (1948), app. dism. 335 U.S. 875, upheld 
its applicability to Jehovah’s Witnesses who persisted in go­
ing past the receptionist of a private apartment house into 
its corridors to solicit tenants, contrary to regulations, con­
curred in by tenants and management, which required in­
vitation of a tenant for permission to enter the hallways. 
The Supreme Court of Virginia, holding the regulation 
“valid and reasonable,” 188 Va. at 90, 49 S,E.2d at 378, 
ruled that state and federal constitutional rights of free 
speech, press, and assembly had not been denied.

There are other Virginia trespass cases, involving similar, 
earlier statutory law, and statements of the common law of 
Virginia, which help further place this statute in a con­
text of the State’s law. The general rule seems to be, as at 
English common law, that an intrusion made under claim 
of right, which may give rise to civil suit, is not a misde­
meanor. Wise v. Commonwealth, 98 Va. 837, 36 S.E. 479 
(1900); Dye v. Commonwealth, 48 Va. (7 Grat.) 662 (Va. 
Gen. Ct., 1851); and that before criminal liability attaches 
there must be a breach of the peace, Henderson v. Common­
wealth, 49 Va. (8 Grat.) 708 (Va. Gen. Ct., 1852) ;2 Com­
monwealth v. Israel, 31 Va. (4 Leigh) 675 (Va. Gen. Ct., 
1833); Miller v. Harless, 153 Va. 228, 149 S. E. 619 (1929).3

2 See Henderson v. Commonwealth, 49 Va. (8 Grat.) 708, 710 (Va. Gen. 
Ct., 1852) : “I t is abundantly clear that the mere breaking and entering the 
close of another, though in contemplation of law a trespass committed vi et 
armis, is only a civil injury to be redressed by action; and cannot be treated as 
a misdemeanor to be vindicated by indictment or public prosecution. But when 
it is attended by circumstances constituting a breach of the peace, such as 
entering the dwelling house with offensive weapons, in a manner to cause 
terror and alarm to the family and inmates of the house, the trespass is 
heightened into a public offense, and becomes the subject of a criminal prose­
cution.” Citing Hex v. Storr, 3 Burr. 1698. See statement of the general 
rule in 63 C.J.S. 1075, to the same effect.

3 In many states there apparently are no statutes under which Boynton 
would have been convicted for trespass: See Arizona, Colorado, Idaho, Iowa, 
Kansas, Louisiana, Missouri, Montana, New Mexico, North Dakota, Pennsyl-



8

But, as indicated above, such holdings have not been em­
ployed by Virginia in its sole interpretation of §18-225.

Issues Presented by the Statute as Applied

Petitioner raises two principal constitutional defenses, 
the Commerce Clause (Article I, §8, cl. 3), and the Equal 
Protection and Due Process Clauses (Fourteenth Amend­
ment), against the asserted power of Virginia to convict 
him under this statute in the circumstances of his interstate

vania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, and 
Wisconsin. Cf. the following states where statutes probably would not be 
applicable to Boynton’s acts: California, West’s Code Annot., 1955, Tit. 14, 
Sec. 602, para. 1 (entering and occupying structures) ; Kentucky, Rev. Stats., 
1959, Sec. 433.380 (trespass hindering conduct of commerce) ; Maine, Rev. 
Stats., 1959, c. 131, Sec. 39 (willful entry on land commercially used, but 
referring to land without buildings); Maryland, Annot. Code, 1957, Art. 27, 
Sec. 577 (wanton entry after warning involving high degree of criminal 
in ten t); Mississippi, Annot. Code, 1942, Tit. 11, Sec. 2411 (remaining on 
inclosed land of another after warning) ; Nebraska Rev. Stats., 1956, Tit. 28, 
Sec. 589 (refusal to depart from enclosure after request) ; New Jersey, Annot. 
Stats., 1951, Tit. 2A, Sec. 170-31 (trespass on lands; totally rural context); 
Oklahoma, West’s Stats. Annot., 1958, Tit. 21, Sec. 1353 (intrusion on lot 
or piece of land; not in sense of buildings) ; and West Virginia, Code, 1955, 
See. 5974 (entry upon inclosed lands after being forbidden).

In other states where perhaps applicable trespass laws do exist, it is ques­
tionable whether under existing interpretations he would have been convicted, 
for clearly he was in the Trailways Terminal under a elaim of right, which 
ordinarily exempts the intrusion from the category of criminal trespass. There 
are no reported eases in these states which would differentiate between a claim 
of constitutional or other federal right and one of traditional “property” 
right. Such differentiation would, of course, raise constitutional questions of 
equal protection. See Florida, West’s Stats. Annot., 1944, Tit. 44, Sec. 821.01 
as interpreted in Boykin v. State, 40 Fla. 484, 24 So. 141 (1898) and 1953-54 
Op. Atty. Gen. 649. In Georgia, until recently the law was stated by: Georgia, 
Annot. Code, 1959, Sec. 26-3002 as interpreted in Murphey v. State, 115 Ga. 
201, 41 S.E. 685 (1902) and Wiggins v. State, 119 Ga. 216, 46 S.E. 86 (1903); 
this now has been superseded by H.B. 1112, Act No. 497, 1960 General As­
sembly (trespass after refusal to leave) ; Indiana, Burns Stats. Annot., 1956, 
Tit. 10, Sec. 4506 as interpreted in Myers v. State, 190 Ind. 269, 130 N.E. 
116 (1921) ; Massachusetts, Michie’s Annot. Laws, C. 266, Sec. 120 as inter­
preted in Commonwealth v. Richardson, 313 Mass. 632, 48 N.E.2d 678 (1943) ; 
New York, McKinney Laws, Art. 182, Sec. 2036 as interpreted in People v. 
Stevens, 109 N.Y. 159, 16 N.E. 53 (1888); Ohio, Page’s Rev. Code Annot.,



9

journey related above. This conflict manifests once more 
the recurring theme which juxtaposes in the courts claims 
of federally protected personal liberty against state en-

See. 2902.21 as interpreted in State v. Larason, 72 Ohio L. Abs. 211, 143 
N.E.2d 502 (1956); and Wyoming, Michie’s Stats. Annot., 1957, Sec. 6-226 
applying Indiana cases, see Myers v. State, supra, sinee derived from Indiana 
statute.

Cf. Alabama, Code, 1940, Title 14, Sec. 426 and “legal eause or good excuse” 
and Illinois Rev. Stats., 1959, Tit. 38, Sec. 565 as interpreted in People v. 
Miller, 344 111. App. 574, 101 N.E.2d 874 (1951). In several states the prob­
lem of the defense of claim of right has not received judicial consideration; as 
to these states it may be argued that the common law defense of bona fide, 
reasonable claim of right would be upheld if asserted. See Alaska, Laws 
Annot., 1958, Sec. 65-5-112; Connecticut, Gen. Stats. Rev., 1958, See. 53-103; 
District of Columbia, Code Annot., 1956, Sec. 22-3102; Hawaii, Rev. Laws, 
1955, See. 312-1; Michigan, Stats. Annot., 1954, See. 28.820(1); Minnesota, 
Stats. Annot., 1947, See. 621.57; Nevada, Rev. Stats., 1957, Sec. 207.200; 
New Hampshire, Rev. Stats. Annot., 1955, Sec. 572:50; Oregon, Rev. Stats., 
Sec. 164.460; and Washington, Rev. Code, 1957, Sec. 9.83.060.

In the following states Boynton would probably have been found guilty: 
Arkansas, Rev. Stats., 1959, Secs. 71-1801, 1802, 1803 (emergency acts designed 
specifically to counteract sit-in situations) ; Delaware, Code Annot., 1953, Tit. 
11, Sec. 871 (elaim of ownership only defense) ; North Carolina, Gen. Stats., 
Tit. 14, Sec. 134 as interpreted in State v. Clyburn, 247 N.C. 455, 101 S.E.2d 
295 (1958); and South Carolina, Code of Laws, 1959, Sec. 16-386 (originally 
directed at Negroes after Civil War, see State v. Cochfield, 15 Rich. (49 
S.C.L.) 53 (1867)).

In England and the Common-wealth countries, Boynton’s deed would not 
have been a crime; see cases requiring breach of peace or use of actual force 
to make trespass indictable, B. v. Storr, 3 Burr. 1698, 97 E.R. 1053 (1765); 
B. v. Blake et al., 3 Burr. 1731, 47 E.R. 1070 (1765) ; and B. v. Wilson, 8 
Term Rep. 357, 101 E.R. 1432 (Kingston Assizes, 1799); except in South 
Africa where the relevant statute specifically is directed at the Natives. See 
Natives (Urban Areas) Consolidation Act of 1945, See. 9, para. 9, as pro­
vided by Sec. 29, para, e of Native Laws Amendment Act, No. 36 of 1957. 
Cf. also Prevention of Illegal Squatting Act, No. 52 of 1951, Sec. 1 with 
interpretation thereof in B. v. Phiri (4) S.A. 708 (T) (1954) and commentary 
thereon in 72 South Af. L.J. 125 (1955). The only other Commonwealth 
countries in which Boynton might have been tried probably would have 
acquitted him on the basis of his defense of entry under a bona fide claim 
of right. See New Zealand, Police Offences Amendment Act (No. 2) No. 43 
of 1952, Sec. 3 as interpreted in By an v. Stanford, 15 N.Z.L.R.C.A. 390 (1897), 
James v. Butler, 25 N.Z.L.R.C.A. 653 (1906) and Greenaway v. Hunt and 
Weggery [1922] N.Z.L.R. 53 [1921], G.L.R. 673; Victoria, Australia, Police 
Offences Act, No. 6337 of 1958, Sec. 20 as interpreted in Falkingham v. 
Fregon, 25 V.L.R. 211, 21 A.L.T. 123 (1899) ; and Tasmania, Trespass to 
Lands Act, 1862, as interpreted in Gripps v. Gripps, 20 Tas. L.R. 47 (1924).



10

foreement of alleged private property right, by criminal 
law or otherwise. Or, to rephrase the matter, the problem 
is one of how far certain claimed private property rights 
extend. Such controversy, in recent years, has arisen in 
various forms.

Where Jehovah’s Witnesses were convicted of trespass 
for having distributed literature on the premises of a 
company-owned town contrary to the wishes of the town’s 
management, Marsh v. Alabama, 326 U.S. 501, Mr. Justice 
Black, for the Court, wrote that “ [t]he more an owner, for 
his advantage, opens up his property for use by the public 
in general, the more do his rights become circumscribed 
by the statutory and constitutional right of those who use it. 
. . . ” at p. 506 and “ [wjhen we balance the Constitutional 
rights of owners of property against those of the people 
to enjoy freedom of press and religion, as we must here, we 
remain mindful of the fact that the latter occupy a pre­
ferred position,” at p. 509. Conviction was reversed. In 
Martin v. Struthers, 319 U.S. 141, this Court held uncon­
stitutional an ordinance which made unlawful ringing 
doorbells of residences for the purpose of distributing hand­
bills, upon considering the free speech values involved—- 
“ [d]oor to door distribution of circulars is essential to the 
poorly financed causes of little people,” at p. 146—and that 
the ordinance precluded individual private householders 
from deciding whether they desired to receive the message. 
But in effecting “an adjustment of constitutional rights in 
the light of the particular living conditions of the time and 
place”, Breard v. Alexandria, 341 U.S. 622, 626, the Court, 
assessing a conviction for door-to-door commercial solicita­
tion involving various popular magazines, contrary to a 
“Green Biver” ordinance, concluded that the community 
“speak[ing] for the citizens,” 341 U.S. 644, might convict 
for crime in the nature of trespass. The decision turned



11

upon balance of the “conveniences between some house­
holders’ desire for privacy and the publisher’s right to dis­
tribute publications in the precise way that those soliciting 
for him think brings the best results.” 341 U.S. at 644. Be­
cause, among other things, “ [subscription may be made by 
anyone interested in receiving the magazines without the 
annoyances of house to house canvassing,” ibid., the judg­
ment was affirmed.

The ordinarily unchallenged right of real property 
owners to fasten covenants on their land has been circum­
scribed to the extent that the Fourteenth Amendment pro­
hibits enforcing of racial restrictive covenants by injunc­
tion, Shelley v. Kraemer, 334 U.S. 1, or damages, Barroivs 
v. Jackson, 346 U.S. 249.

A like collision between federal rights, this time conferred 
by the National Labor Relations Act, and rights in real 
property defined by state law, also has called for reconcilia­
tion in this Court. Republic Aviation, Inc. v. N. L. R. R., 
324 U.S. 793, upheld the validity of National Labor Re­
lations Board rulings that, lacking special circumstances 
that might make such rules necessary, employer regulations 
forbidding all union solicitation on company property re­
gardless of whether the workers were on their own or com­
pany time, constituted unfair labor practices. In assessing 
the regulations, Justice Reed balanced the employer’s right 
to maintain discipline wTith the employees’ right to organize; 
no weight was given to the employer’s property right, men­
tioned solely at 324 U.S. 802, note 8.4 Similarly a Baltimore 
City Court, State of Maryland v. Williams, 44 Lab. Rel. Ref.

4 See also N.L.B.B. v. American Pearl Button Co., 149 F.2d 258 (8th 
Cir., 1945) ; United Steelworkers v. N.L.B.B., 243 F.2d 593, 598 (D.C. Cir., 
1956) (reversed on other grounds) 357 U.S. 357. (“Our attention has not 
been called to any case under the Wagner Act or its successor in which it 
has been held that an employer can prohibit either solicitation or distribution 
of literature by employees simply because the premises are company property.



12

Man. 2357, 2361 (1959) has on Fourteenth Amendment and 
Labor Management Relations Act grounds, decided that 
pickets may patrol property within a privately owned shop­
ping center.5

The Commerce Clause too has been interposed by the 
courts between private proprietors of interstate carriers 
and passengers who resisted racial segregation on those 
carriers by rule of the management. Whiteside v. Southern 
Bus Lines, 177 F.2d 949 (6th Cir., 1949); Chance v. Lam­
beth, 186 F.2d 879 (4th Cir., 1951), cert, den., 341 U.S. 
941. And the Fourteenth Amendment forbids police to ar­
rest those who violate an intrastate carrier’s private racial 
seating regulation, where to violate management’s seating 
rule is a crime. The statute did not mention race. Boman 
v. Birmingham Transit Co., No. 18187, July 12, 1960, Fifth 
Circuit.

In such eases the approach of the courts has been infused 
with an awareness, as Mr. Justice Frankfurter wrote, con­
curring in Marsh v. Alabama, 326 U.S. 501, 510, that “when 
decisions by State courts involving local matters are so 
interwoven with the decision of the question of Constitu­
tional rights that the one necessarily involves the other,

Employees are lawfully within the plant, and nonworking time is their own 
time. I f  Section 7 activities are to be prohibited, something more than mere 
ownership and control must be shown.”)

Compare N.L.B.B. v. Fansteel Metal Corp., 306 U.S. 240, 252 (employees 
seized plant; discharge held valid: “high-handed proceeding without shadow 
of legal right”) .

5 See also People v. Barisi, 193 Misc. 934, 86 N.Y.S.2d 277, 279 (1948) 
(picketing within Pennsylvania Station not trespass; owners have opened it 
to public and their property rights are 'circumscribed, by the constitutional 
rights of those who use it.’ ”) ; Freeman v. Retail Clerics Union, Washington 
Superior Court, 45 Lab. Eel. Eef. Man. 2334 (1959) (shopping center owner 
denied relief against picketers on his property; relying on Fourteenth Amend­
ment).



13

State determination of local questions cannot control the 
Federal Constitutional right.” 6

Therefore, here, the essential right of the management of 
the Trailways Terminal restaurant to enforce segregation 
of interstate passengers by means of the full force of the 
Commonwealth of Virginia, asserted through its police and 
courts, must be weighed against the claim of petitioner, an 
interstate traveler, to freedom of movement without being 
hobbled by racial distinction in the course of an interstate 
journey (Article 1, §8), and his further claim to be free of 
arrest and conviction in the Virginia courts in the enforce­
ment of such racial rules (Fourteenth Amendment). Peti­
tioner submits that under our Constitution this conflict can 
be resolved only in the interest of freedom of movement 
among the states and freedom from criminal conviction 
in the state courts to enforce racial discrimination.

6 For a related conclusion in a different constitutional context see, Jones
v. United States, U.S. ------, ------ (1960) (“ . . . it is unnecessary and
ill-advised to impart into the law surrounding the constitutional right to be 
free from unreasonable searches and seizures subtle distinctions, developed 
and refined by the common law in evolving the body of private property law 
which, more than almost any other branch of law, has been shaped by dis­
tinctions whose validity is largely historical. . . . Distinctions such as those 
between ‘lessee,’ ‘licensee,’ ‘invitee’ and ‘guest,’ often only of gossamer strength, 
ought not to be determinative in fashioning procedures ultimately referable 
to constitutional safeguards.” 4 D.ed.2d 697 at 705.



14

I.

The decisions below conflict with principles estab­
lished by decisions of this Court by denying petitioner, 
a Negro, a meal in the course of a regularly scheduled 
stop at the restaurant terminal of an interstate motor 
carrier and by convicting him of trespass for seeking 
nonsegregated dining facilities within the terminal.

In this context we approach petitioner’s first contention 
that his arrest and conviction disrupted his interstate jour­
ney in a manner violative of Article I, §8, cl. 3:

[“E]ver since Gibbons v. Ogden, 9 Wheat. (US) 1, 6 
L.ed. 23, the states have not been deemed to have au­
thority to impede substantially the free flow of com­
merce from state to state, or to regulate those phases 
of the national commerce which, because of the need 
of national uniformity, demand that their regulation, 
if any, be prescribed by a single authority . . . ”

wrote Chief Justice Stone in Southern Pacific Co. v. 
Arizona, 325 U.S. 761, 767.

In that case the Arizona Train Limit Law, which limited 
the size of trains to fourteen passenger or seventy freight 
ears was held violative of the Commerce Clause. The law 
required that interstate rail transport be disrupted in 
Arizona to adjust the length of trains to that state’s de­
mand. The “state interest [was] outweighed by the in­
terest of the nation in an adequate economical and efficient 
railway transportation service, which must prevail.” 325 
U.S. at 783-84. Of a piece with the Southern Pacific de­
cision, and more intimately related to the suit at bar, was 
Morgan v. Virginia, 328 U.S. 373, which held unconstitu­
tional, under the Commerce Clause, Virginia’s segregated 
seating statute as applied to an interstate bus passenger.



15

“On such interstate journeys, the enforcement of the re­
quirements for reseating would be disturbing.” 328 U.S. 
at 381. “ . . . [S]eating arrangements for the different 
races in interstate motor travel require a single, uniform 
rule to promote and protect national travel.” Id. at 386. 
And the disturbing effect of segregated seating in dining 
service was recognized by this Court in Henderson v. United 
States, 339 U.S. 816, 825, which, while dealing with the 
Interstate Commerce Act, condemned racial segregation in 
railroad dining cars as “emphasiz[ing] the artificiality of 
the difference in treatment which serves only to call at­
tention to a racial classification of passengers holding 
identical tickets and using the same public dining facility.”

Only last year, the vigor of the Morgan and Southern 
Pacific cases was reaffirmed in Bibb v. Navajo Freight 
Lines, 359 U.S. 520, which cited both with approval at pp. 
526 and 528, and concluded that Illinois’s mud-flap regula­
tion was a burden on interstate commerce: “state regula­
tions that run afoul of the policy of free trade reflected in 
the Commerce Clause must . . . bow.” 359 U.S. at 529.

The Richmond Trailways Terminal is, of course, itself, 
a stationary accommodation. But clearly it is now settled 
that a facility need not be in motion to come under the 
Commerce Clause. An interstate bus terminal restaurant, 
built as an integral part of the terminal structure, is as 
much a part of interstate commerce, as, for example, a stock- 
yard for the care and feeding of cattle during a pause in 
their interstate movement. See Stafford v. Wallace, 258 
U.S. 495, 519, in which Chief Justice Taft wrote that

“this court declined to defeat this purpose [of the Com­
merce Clause] in respect of such a stream, and take it 
out of complete national regulation by a nice and 
technical inquiry into the non-interstate character of 
some of its necessary incidents and facilities when



16

considered alone and without reference to their associa­
tion with the movement of which they were an essen­
tial but subordinate part.”

Indeed, Hall v. DeCuir, 95 U.S. 485, struck down a stat­
ute forbidding racial distinctions on a steamboat even 
though the situation at bar involved an intrastate trip. 
The law, it was held, interfered with interstate voyages.

Pursuant to this view the Court has held that “ . . . 
warehouses engaged in the storage of grain for interstate 
or foreign commerce are in the federal domain . . . ,” 
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 229; and 
that a transaction with a redcap during a stop at a railroad 
station is within the same jurisdiction, N.Y. N.H. & H. R. 
Co. v. Nothnagle, 346 U.S. 128, 130.7 Petitioner submits, 
therefore, that in determining the standards which the ter­
minal and the restaurant, which was an integral part of it, 
must meet under the Commerce Clause, the same rules must 
apply, for purposes of this case, as would be applied to a 
moving bus.

It has been argued that the Commerce Clause does not 
reach rules of carriers which have no origin in state law. 
A like argument was made in Re Debs, 158 U.S. 564, 581. 
To this, the opinion of the Court replied:

“It is curious to note the fact that in a large propor­
tion of the cases in respect to interstate commerce 
brought to this court the question presented was of 
the validity of state legislation in its bearings upon 
interstate commerce, and the uniform course of decision

7 See also United States v. Yellow Cab Co., 332 U.S. 218, 228. Sprout v. 
South Bend, 277 U.S. 163, 168. And see also Kirschenbaum v. Walling, 316 
U.S. 517 (commerce power, expressed in the Fair Labor Standards Act, as 
interpreted in that case, reached employees of a loft building whose tenants 
were principally engaged in interstate commerce). All of these are oases 
which hold that the commerce power extends sufficiently far to uphold federal 
regulation of activities, which themselves, actually do not move among the 
States.



17

has been to declare that it is not within the competency 
of a state to legislate in such a manner as to obstruct 
interstate commerce. If a state with its recognized 
powers of sovereignty is impotent to obstruct inter­
state commerce, can it be that any mere voluntary as­
sociation of individuals within the limits of that state 
has a power which the state itself does not possess!”

Here, however, we have, in addition, police arrest and 
•court conviction. Concerning such circumstances, in a 
background of racial discrimination in interstate travel, 
two Courts of Appeals have held the racial restriction un­
constitutional. The Fourth Circuit has written:

“Under the company’s regulations, the three coaches first 
in line were designed for Negro passengers and the 
next two for white passengers . . . ” (Emphasis sup­
plied. )

“At Richmond, the trainmen segregated the passengers 
. . . The regulations of the company upon which the 
decision of the case turns were issued to the train­
men . . . ” (Emphasis supplied.)

“It is true that the regulation of the carrier was not 
enacted by state authority, although the power of the 
state is customarily involved to enforce it, but we 
know of no principle of law which requires the courts 
to strike down a state statute which interferes with in­
terstate commerce but to uphold a railroad regulation 
which is infected with the same vice.”

Chance v. Lambeth, 186 F.2d 879, 880, 883 (4th Cir., 1951), 
cert, denied 341 U.S. 941, Parker, Soper, Dobie, JJ.

And, in Whiteside v. Southern Bus Lines, 177 F.2d 949, 
953 (6th Cir., 1949), the Sixth Circuit held, per Hicks, 
Simons and McAllister, JJ., that



18

“appellant here boarded an interstate conveyance in Il­
linois which has neither statute, decision or custom 
sanctioning or requiring segregation based upon race 
or color. The requirement [of the carrier] that she 
change her seat with all her accompanying impedi­
menta the moment she crossed the Kentucky line, was 
a breach of the uniformity which under the Morgan 
case, is a test of the burden placed upon interstate 
commerce.

“It must also be observed that acts burdening inter­
state commerce are not, like those inhibited in the 
Fourteenth Amendment, limited to state action. Bur­
dens may result from the activities of private persons 
as the great mass of federal criminal legislation vali­
dated under the authority of the Commerce Clause, 
discloses. But, if state action is a prerequisite to 
the invalidity of the regulation here considered as it 
was applied to the appellant, state action is clearly 
to be perceived in the ejection of the appellant by a 
state police officer.” 8

Here we have similar elements which compel a con­
clusion that halting Boynton’s journey violated the Com­
merce Clause: A racial impediment to reasonably secur-

8 To the extent that requisite state involvement is supplied by police 
enforcement of an intrastate carrier segregation regulation, the F ifth Circuit, 
in passing on a Fourteenth Amendment contention recently has arrived at a 
similar result. Boman v. Birmingham Transit Co., No. 18187, July 12, 1960, 
F ifth Circuit, Tuttle and Wisdom, JJ. (Cameron, J., dissenting), held that “so 
long as such an ordinance [committing seating arrangements to the driver] 
was in force, the acts of the Bus Company in requiring racially segregated 
seating were state acts and were thus violative of the appellant’s constitutional 
rights. . . . ” (Emphasis supplied.)

“Of course, the simple company rule that Negro passengers must sit in back 
and white passengers must sit in front, while an unnecessary affront to a large 
group of its patrons would not effect a denial of [Fourteenth Amendment] 
constitutional rights if  not enforced by force or by threat of arrest and 
criminal action.”



19

ing meal service in the manner of white passengers in the 
course of an interstate journey, in an interstate terminal 
restaurant constructed and maintained for the purpose 
of facilitating interstate commerce; an interruption of the 
interstate journey, complete and decisive; and, should state 
involvement be required for application of the Commerce 
Clause, invocation of state statute to enforce the racial 
rule and the full intervention of Virginia police and courts 
to uphold it.

In Southern Pacific v. Arizona, 325 U.S. 761, 768, Chief 
Justice Stone, writing of the limitations which the Com­
merce Clause places upon activities which burden inter­
state commerce, stated—“fwjhether or not this long recog­
nized distribution of powers between the national and the 
state governments is predicated upon the implication of 
the commerce clause itself [citations omitted]; or upon the 
presumed intention of Congress, where Congress has not 
spoken [citations omitted], the result is the same.”

Congress certainly has not spoken explicitly on the ques­
tion of whether racial segregation in an interstate bus ter­
minal, enforced by state arrest and conviction in the courts, 
burdens interstate commerce. Morgan v. Virginia, supra, 
has held that Congress has not spoken on the closely re­
lated issue of racial segregation on interstate buses, 328 
U.S. 373, at p. 386 (“ . . . there is no federal act dealing 
with the separation of races in interstate transportation.
. . .). While certain provisions of the Motor Carriers Act 
(49 U.S.C. §316(d)) are analogous to the Interstate Com­
merce Act provision (49 U.S.C. §3(1)) by which this Court 
struck down dining car, Henderson v. United States, 339 
U.S. 816 and Pullman car segregation, Mitchell v. United 
States, 313 U.S. 80, Morgan may be taken as a determina­
tion that congressional intent on the precise question of 
race discrimination in interstate bus travel is at least not



20

sufficiently express to conclude this case by itself. As in 
Morgan, this Court here, petitioner submits, should strike 
down the burden on commerce in the absence of contrary 
indications of intent from Congress.

The Court, however, by letter to counsel for Respondent 
has inquired concerning “the intercorporate relationship 
between the Trailways Bus Company and the Trailways 
Bus Terminal, Inc., set forth in any documents of which 
the Virginia courts can take judicial notice.” Appendix 
A to Respondents’ Brief in Opposition, p. 12. To Peti­
tioner, this perhaps indicates interest by the Court in the 
question of congressional intention as it may have been 
expressed in the Motor Carriers Act. Title 49, §303(19) of 
that Act provides that its terms apply to services and trans­
portation, which includes “facilities and property operated 
or controlled by any such carrier,” and §316 (d) of the Act 
contains an “undue preferences” and “prejudices” provi­
sion like that which this Court treated in Henderson, supra, 
when dealing with rail travel. These Motor Carriers Act 
provisions have been construed in Keys v. Carolina Coach 
Co., 64 M.C.C. 769 (1955), as imposing upon bus carriers 
requirements concerning race like those the Interstate Com­
merce Act places on railroads. Under these circumstances 
it might be argued that the Motor Carriers Act expresses 
congressional intention concerning the discrimination in­
volved in this case. That Act, so interpreted, might apply 
here, specifically, if the Richmond Trailways Terminal 
were “operated” or “controlled” by a carrier.

Petitioner submits that, if Morgan does not conclude the 
issue, whether the Trailways Bus Company and the Trail- 
ways Bus Terminal are sufficiently related to place the 
Terminal explicitly under the Motor Carriers Act, or not, 
the result is the same, for the intention of Congress, as it



21

treats the problem of this ease, mast be regarded as the 
same for either situation.

Should the first condition obtain (he., the Terminal is 
“operated or controlled” by a carrier), obviously the ex­
pressed intention of Congress is that such racial impedi­
ment is impermissible if there is to be an unburdened flow 
of commerce among the states. Should the second condition 
obtain (he., the terminal is not operated or controlled by 
a carrier), it cannot be assumed that Congress meant to 
remit all of the interstate terminal’s multifarious acts, as 
regulated by the myriad provisions of the Motor Carriers 
Act, no matter how burdensome to interstate commerce, 
to the unfettered discretion of the terminal management 
or state law enforcing that discretion. Bob-Lo Excursion 
Co. v. Michigan, 333 U.S. 28, which sustained a state anti- 
discrimination law as applied to foreign commerce, when 
contrasted to Morgan, supra, demonstrates the importance 
attached to keeping the channels of movement among the 
states free from racial impediments. Therefore, validation 
of segregation in these channels is not merely to be as­
sumed. Surely, if Congress intended to commit to state 
law the matter of racial segregation, enforced by state laws 
in the midst of an interstate bus journey, this intention 
would have been pronounced quite explicitly. But such a 
pronouncement would raise serious Fifth Amendment ques­
tions (see Morgan v. Virginia, 328 IT.S. 373, 380—“Con­
gress, within the limits of the Fifth Amendment has au­
thority to burden commerce” ; Secretary of Agriculture v. 
Central Roig Refining Company, 338 U.S. 604, 616—“not 
even resort to the Commerce Clause can defy the standards 
of due process” ; and see Bolling v. Sharpe, 347 U.S. 497). 
However, there is no evidence of such intention and none 
should be imputed to Congress, especially in the light of 
the constitutional questions this would raise. Therefore, 
even in the case of an interstate terminal not “operated



22

or controlled” by a carrier, a racial burden like that in­
flicted on Boynton by the Commonwealth of Virginia, un­
constitutionally burdens commerce.

In any event, the terminal in question is owned by Trail- 
ways Bus Terminal, Inc., whose officers and directors, in 
1959, with one exception, were all also officers or directors 
of either Carolina Coach Company or Virginia Stage Lines, 
both interstate carriers.9 Petitioner is depositing certified 
copies of the relevant corporate charters and annual reports 
with this Court.

While the Virginia Attorney General has concluded that 
the Virginia courts would not take judicial notice of these 
charters (Brief in Opposition, p. 4), petitioner assumes 
that the Attorney General would not deny the validity of 
these documents. In either event, the result, petitioner 
submits, is the same.

II.

Petitioner’s criminal conviction which served only to 
enforce the racial regulation of the bus terminal restau­
rant conflicts with principles established by decisions 
of this Court, and thereby violates the Fourteenth 
Amendment.

Beyond question, petitioner was arrested by the police 
and convicted by the courts, pursuant to state statute, to 
enforce the racial segregation demanded by the Trailways 
Terminal restaurant. Petitioner contends that this pun­
ishment violates Fourteenth Amendment rights in that 
it amounts to governmental enforcement of racial segrega­
tion. See, e.g., Shelley v. Kraemer, 334 U.S. 1, 18, in which 
the issue was whether judicial enforcement of privately

9 Hitchcock's Mass Transportation Directory (1959-60 ed.), 205 (Carolina 
Coach Co.) ; 242 (Virginia Stage Lines) indicates clearly the interstate 
character of these carriers.



23

arrived at racial restrictive covenants violated the Four­
teenth Amendment. There the Court held that judicial 
enforcement of racial discrimination violates the Four­
teenth Amendment:

The short of the matter is that from the time of 
the adoption of the Fourteenth Amendment until the 
present, it has been the consistent ruling of this Court 
that the action of the States to which the Amendment 
has reference, includes action of state courts and 
state judicial officials. Although, in construing the 
terms of the Fourteenth Amendment, differences have 
from time to time been expressed as to whether par­
ticular types of state action may be said to offend the 
Amendment’s prohibitory provisions, it has never been 
suggested that state court action is immunized from 
the operation of those provisions simply because the 
act is that of the judicial branch of the state govern­
ment.

The only contention advanced by respondents in response 
to this aspect of the petition for writ of certiorari seems to 
argue that because the discrimination originated in a 
“private” directive, i.e., that of the restaurant management, 
Bruce Boynton’s criminal conviction is not that sort of 
state action which the Fourteenth Amendment interdicts. 
Respondent relies on the theory expressed in Williams v. 
Howard Johnson’s Restaurant, 268 F.2d 845 (4th Cir., 
1959). Apart from the fact that that restaurant was hardly 
so integral a part of commerce as the one involved in this 
case, and that petitioner here had no reasonable alternative, 
but had to finish a meal quickly in the terminal and resume 
his bus trip, petitioner, here, seeks not relief against the 
restaurant, but immunity from conviction by the State and 
its attendant consequences, especially for one who is a 
law student.



24

Marsh v. Alabama, 326 TJ.S. 501, 505-06, stated a funda­
mental rule that:

. . . the corporation’s property interests [do not] 
settle the question. The State urges in effect that 
the corporation’s right to control the inhabitants of 
Chickasaw is coextensive with the right of a home- 
owner to regulate the conduct of his guests. We can­
not accept that contention. Ownership does not always 
mean absolute dominion. The more an owner, for 
his advantage, opens up his property for use by the 
public in general, the more do his rights become cir­
cumscribed by the statutory and constitutional rights 
of those who use it.

The terminal restaurant was open to that portion of 
the interstate traveling public of which petitioner was a 
part. Indeed, it exists principally, and was built into the 
terminal, to serve bus riders who travel on interstate buses 
that make stops in Richmond. It fairly may be stated that 
petitioner and other travelers did not seek out the terminal; 
rather, they were carried into it by interstate buses for re­
freshment without which interstate bus travel would be 
impossible or highly inconvenient. Reasoning like that 
employed in Marsh has struck down trespass prosecutions 
for picketing in Pennsylvania Station, New York; for 
picketing in a Maryland shopping center, and for similar 
conduct in a Washington State shopping center.10 These 
decisions, for similar reasons, should apply here.

Boman v. Birmingham Transit Co., supra, p. 12, also 
interdicts, under the Fourteenth Amendment, state criminal 
prosecution in support of privately declared racial regula­
tion on local buses, even though the statute in question it-

10 See n. 5, supra.



25

self made no mention of race. While some reliance there is 
placed on the fact that the buses were franchised, it is not 
so much the documents of franchise but the exclusivity 
which they evidenced that controls, petitioner submits. Un­
der the circumstances of this case we have similar exclu­
sivity.

Any weighing of reasonable alternative action that might 
have been taken by petitioner, cf. Breard v. Alexandria, 341 
U.S. 622, 644 (magazines may sell subscriptions without 
door-to-door solicitation); Republic Aviation v. N.L.R.B., 
324 U.S. 793, 801, note 6 (employees denied full freedom of 
association in “the very time and place uniquely appropri­
ate”), shows that his only choice was to remain hungry or 
submit to racial segregation, inconvenience, and humilia­
tion.

The inquiry in a case such as this, therefore, does not 
begin and end with a determination of where the legal title 
or possessory interest lies. As in the National Labor Rela­
tions Act cases, discussed supra, pp. 10-11, the question is 
one involving other factors as well. Here, as in United 
Steelworkers v. N.L.R.B., 243 F.2d 593, 598, petitioner was 
“lawfully within” the terminal. He behaved himself well. 
There was no disorder, nor was there any breach of the 
peace. He believed, with reason, that he had a right to the 
service he sought. There was no reasonable alternative 
action for him to take.

It cannot be argued seriously that to uphold petitioner’s 
conviction is necessary and reasonable for the maintenance 
of law and order, and that, therefore, the statute in question, 
as applied to petitioner in these circumstances, does not 
violate the Constitution.11 The common law never pro-

11 Compare N.L.B.B. v. Fansteel Metal Corp., 306 U.S. at 253. (“To jus­
tify such conduct because of the existence of a labor dispute or of an unfair 
labor practice would be to put a premium on resort to force instead of legal 
remedies and to subvert the principles of law and order which lie at the 
foundations of society.”)



26

scribed as trespass conduct such as petitioner’s—i.e., con­
duct which did not cause breach of the peace and which was 
taken under a claim of right. Most other states, as footnote 
3, indicates, would not have punished petitioner’s conduct, 
either because those states have no statute covering “tres­
pass” after refusal to depart from premises such as the 
terminal, or because they recognize “claim of right” as a 
defense, or because, in view of common law and general in­
terpretations of this type of statute, it reasonably may be 
assumed that they would recognize a peacefully asserted 
bona fide claim of right. Neither does England or the 
Commonwealth countries punish conduct such as Boynton’s, 
except, instructively, South Africa, where a statute, directed 
against Natives makes criminal deeds like petitioner’s.

This Court, petitioner submits, should not uphold as a 
crime, petitioner’s peacefully asserted, reasonable claim to 
equality in the course of a journey in interstate commerce. 
Virginia’s action has no foundation in reason, other than 
to uphold race discrimination. The judgment below denies 
equal protection of the laws.

CONCLUSION

Wherefore, for the foregoing reasons, the judgment 
below should be reversed.

Respectfully submitted,

Martin A. Martin 
Clarence W. Newsome 

T httrgood Marshall 
J ack Greenberg

Attorneys for Petitioner

Louis H. P ollak 
Constance Baker Motley

Of Counsel